Case 1:20-cv-00330 Document 1 Filed 07/27/20 Page 1 of 10 PageID #: 1 Alan Alexander Beck Law Office of Alan Beck 2692 Harcourt Drive San Diego, CA 92123 (619) 905-9105 Hawaii Bar No. 9145 Alan.alexander.beck@gmail.com Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ALANOA NICKEL ) ) Plaintiff, ) ) Civil Action No. _____________ v. ) ) CLARE E. CONNORS, in her Official ) Capacity as the Attorney General of the ) State of Hawaii and AL CUMMINGS ) in his Official Capacity as the State Sheriff ) Division Administrator; CITY AND ) COUNTY OF HONOLULU; ) ) Defendants. ) ____________________________________) VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF COMES NOW the Plaintiff, Alanoa Nickel, (“Plaintiff”), by and through his undersigned counsel, and complains of the Defendants as follows: 1 Case 1:20-cv-00330 Document 1 Filed 07/27/20 Page 2 of 10 PageID #: 2 I. PARTIES 1. Plaintiff Alanoa Nickel is an adult male resident of the State of Hawaii and resides in Honolulu County. He is over the age of 21. He was born in the U.S. territory of America Samoa and is thus classified as a U.S. National of the United States of America but not a U.S. citizen. 2. Defendant Clare E. Connors is the Attorney General of the State of Hawaii and is sued in her official capacity and is responsible for enforcing the State of Hawaii’s customs, policies, practices and laws related to the State of Hawaii’s ban on noncitizen U.S. Nationals applying for a permit to acquire a firearm. Defendant Connors may be served at the Office of Attorney General located at 425 Queen St, Honolulu, Hawaii 96813. 3. Defendant Al Cummings is sued in his official capacity as State Sheriff Division Administrator. Defendant Cummings is responsible for enforcing the State of Hawaii’s customs, policies, practices and laws related to Hawaii’s ban on noncitizen U.S. Nationals applying for a permit to acquire a firearm. Defendant Cummings may be served at the Department of Public Safety Sherriff’s division located at 1177 Alakea Street, Room #418, Honolulu, Hawaii 96813. 4. Defendant City and County of Honolulu (“City”) is a municipal corporation incorporated under the laws of the State of Hawaii. The City is authorized by law to control and maintain the Honolulu Police Department, an 2 Case 1:20-cv-00330 Document 1 Filed 07/27/20 Page 3 of 10 PageID #: 3 agency of the city, who acts on the City’s behalf in the area of law enforcement. The City is therefore ultimately responsible for Honolulu Police Department (“HPD”) and its actions, and therefore, must assume the risks incidental to the maintenance of HPD, its employees, laws, customs and policies. The City and County of Honolulu can be served by serving the Department of the Corporation Counsel, City and County of Honolulu, 530 S. King Street, Room 110, Honolulu, HI 96813. II. JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343, 2201, 2202 and 42 U.S.C. § 1983 and § 1988. 6. This Court has personal jurisdiction over the Defendants because they acted under the color of laws, policies, customs and/or practice of the State of Hawaii and within the geographic confines of the State of Hawaii. 7. Venue lies in this Court pursuant to 28 U.S.C. § 1391. 8. Venue is proper because the Defendants execute, administer, and enforce the complained of laws against Plaintiff in this District and because the events and omissions giving rise to this action are harming Plaintiff in this District, and the State law was enacted in the State capital in this District. III. STATEMENT OF FACTS 9. Plaintiff desires to apply for a permit to acquire a handgun permit which would enable him to defend himself in the State of Hawaii. 3 Case 1:20-cv-00330 Document 1 Filed 07/27/20 Page 4 of 10 PageID #: 4 10. Plaintiff was born in America Samoa. 11. Plaintiff is a U.S. National but not a U.S. citizen due to being born in America Samoa. 12. Plaintiff is over the age of 21. 13. Plaintiff has never committed a crime that would prohibit him from owning a firearm under with Hawaii or federal law. 14. Plaintiff does not take illegal drugs or abuse alcohol. 15. Plaintiff does not suffer from any mental disorder which would preclude him from owning a firearm under Hawaii or federal law. 16. Plaintiff has never been adjudicated mentally defective or has been committed to a mental institution by a court. 17. Other than Plaintiff’s status as a noncitizen U.S. National, there is no other reason under state or federal law that would preclude him from owning a firearm. 18. Plaintiff served and was honorably discharged from the Utah Air National Guard. 19. Plaintiff is a law-abiding U.S. national and a resident of the State of Hawaii and has no disqualifying factor which would prohibit him from legally and safely owning a firearm apart from being a noncitizen U.S. National. But because 4 Case 1:20-cv-00330 Document 1 Filed 07/27/20 Page 5 of 10 PageID #: 5 Plaintiff is not a citizen of the United States of America, he cannot even apply for a permit to acquire a firearm. 20. Under HRS § 134-2, the "chief of police of the respective counties may issue permits to acquire firearms to citizens of the United States of the age of twenty- one years or more". 21. As such, because Plaintiff is not a citizen of the United States of America, the chief of police of Honolulu has no discretion in which to even allow the Plaintiff to apply for a permit. Hawaii state law completely forbids anyone who is not a citizen of the United States of America from even applying because the chief of police cannot grant a permit to a non-citizen. 22. However, in Fotoudis v. City & County of Honolulu, 54 F. Supp. 3d 1136, State law was enjoined to the extent that it applied to permanent resident aliens. 23. It was not enjoined as to noncitizen U.S. Nationals and is still being enforced against them. 24. Plaintiff has refrained from owning a firearm in the State of Hawaii because he fears arrest, prosecution, fines and imprisonment if he were to do so because it is unlawful for a noncitizen U.S. National to receive a permit to acquire a firearm in the State of Hawaii. 5 Case 1:20-cv-00330 Document 1 Filed 07/27/20 Page 6 of 10 PageID #: 6 25. Due to Hawaii law requiring a permit to acquire to purchase a firearm and registration of all firearms, Plaintiff is unable to acquire a firearm. 26. On July 15th 2020, Plaintiff went to Honolulu Police Department and attempted to apply for a permit to acquire a firearm. Upon discovering that Plaintiff was a noncitizen U.S. National, the officer processing Plaintiff denied him the opportunity to apply for a permit to acquire citing state law. 27. A controversy exists as to whether the citizenship requirement contained in HRS 134-2 is unconstitutional as applied to noncitizen U.S. Nationals. 28. There is no adequate remedy at law because only a declaration that HRS 134-2 is unconstitutional, as opposed to money damages, would allow Plaintiff as a noncitizen U.S. National the opportunity to apply for a permit to acquire a firearm. COUNT I VIOLATION OF SECOND AMENDMENT (U.S. Const. Amend. II; 28 U.S.C. §§ 1331, 1343, 2201, 2202 and 42 U.S.C. § 1983 and § 1988) 29. Plaintiff realleges and incorporates the previous paragraphs by reference. 30. The citizenship requirement in HRS 134-2, and all other Hawaii statutory language, which restrict noncitizen U.S. Nationals the rights and privileges of owning firearms based on citizenship, on their face and as-applied, are unconstitutional denials of the Second Amendment in violation of the Second Amendment of the United States Constitution. 6 Case 1:20-cv-00330 Document 1 Filed 07/27/20 Page 7 of 10 PageID #: 7 COUNT I VIOLATION OF EQUAL PROTECTION (U.S. Const. Amend. XIV; 28 U.S.C. §§ 1331, 1343, 2201, 2202 and 42 U.S.C. § 1983 and § 1988) 31. Plaintiff realleges and incorporates the previous paragraphs by reference. 32. The citizenship requirement in HRS 134-2, and all other Hawaii statutory language, which restrict noncitizen U.S. Nationals the rights and privileges of owning firearms based on citizenship, on their face and as-applied, are unconstitutional denials of equal protection of the laws in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. PRAYER FOR RELIEF WHEREFORE, Plaintiff requests that judgment be entered in his favor and against Defendants as follows: 1. An order preliminarily and permanently enjoining Defendants, their officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of the injunction, from enforcing HI Rev Stat § 134-2’s citizenship requirement as applied to Plaintiff; 2. An order preliminarily and permanently enjoining Defendants, their officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of the injunction, from enforcing 7 Case 1:20-cv-00330 Document 1 Filed 07/27/20 Page 8 of 10 PageID #: 8 HI Rev Stat § 134-2’s citizenship requirement as applied to all noncitizen U.S. Nationals; 3. An order declaring that HI Rev Stat § 134-2’s citizenship requirement is unconstitutional and violates the Second Amendment and the Equal Protection Clause of the United States Constitution as applied to Plaintiff; 4. An order declaring that HI Rev Stat § 134-2’s citizenship requirement is unconstitutional and violates the Second Amendment and the Equal Protection Clause of the United States Constitution as applied to all noncitizen U.S. Nationals 5. An order declaring HI Rev Stat § 134-2’s citizenship requirement unenforceable as to noncitizen U.S. Nationals; 6. Costs of suit, including attorney fees and costs pursuant to 42 U.S.C. §1988; 7. Such other Declaratory relief consistent with the injunction as appropriate; and 8. Such other further relief as the Court deems just and appropriate. Dated: July 27th, 2020. Respectfully submitted, ALANOA NICKEL /s/ Alan Beck Counsel for Plaintiff 8 Case 1:20-cv-00330 Document 1 Filed 07/27/20 Page 9 of 10 PageID #: 9 Alan Alexander Beck Law Office of Alan Beck 2692 Harcourt Drive San Diego, CA 92123 (619) 905-9105 Hawaii Bar No. 9145 Alan.alexander.beck@gmail.com 9 Case 1:20-cv-00330 Document 1 Filed 07/27/20 Page 10 of 10 PageID #: 10 10 Case 1:20-cv-00330 Document 1-1 Filed 07/27/20 Page 1 of 2 PageID #: 11 OJS 44 (Rev. 12/07) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) I. (a) PLAINTIFFS DEFENDANTS ALANOA NICKEL CLARE E. CONNORS, in her Official Capacity' AL CUMMINGS in his Official Capacity and CITY AND COUNTY OF HONOLULU (b) County of Residence of First Listed Plaintiff Honolulu County of Residence of First Listed Defendant Honolulu (EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED. (c) Attorney’s (Firm Name, Address, and Telephone Number) Attorneys (If Known) Alan Beck 2692 Harcourt Drive San Diego CA 92123 II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an “X” in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) ’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4 of Business In This State ’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5 Defendant of Business In Another State (Indicate Citizenship of Parties in Item III) Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6 Foreign Country IV. NATURE OF SUIT (Place an “X” in One Box Only) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES ’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 610 Agriculture ’ 422 Appeal 28 USC 158 ’ 400 State Reapportionment ’ 120 Marine ’ 310 Airplane ’ 362 Personal Injury - ’ 620 Other Food & Drug ’ 423 Withdrawal ’ 410 Antitrust ’ 130 Miller Act ’ 315 Airplane Product Med. Malpractice ’ 625 Drug Related Seizure 28 USC 157 ’ 430 Banks and Banking ’ 140 Negotiable Instrument Liability ’ 365 Personal Injury - of Property 21 USC 881 ’ 450 Commerce ’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Product Liability ’ 630 Liquor Laws PROPERTY RIGHTS ’ 460 Deportation & Enforcement of Judgment Slander ’ 368 Asbestos Personal ’ 640 R.R. & Truck ’ 820 Copyrights ’ 470 Racketeer Influenced and ’ 151 Medicare Act ’ 330 Federal Employers’ Injury Product ’ 650 Airline Regs. ’ 830 Patent Corrupt Organizations ’ 152 Recovery of Defaulted Liability Liability ’ 660 Occupational ’ 840 Trademark ’ 480 Consumer Credit Student Loans ’ 340 Marine PERSONAL PROPERTY Safety/Health ’ 490 Cable/Sat TV (Excl. Veterans) ’ 345 Marine Product ’ 370 Other Fraud ’ 690 Other ’ 810 Selective Service ’ 153 Recovery of Overpayment Liability ’ 371 Truth in Lending LABOR SOCIAL SECURITY ’ 850 Securities/Commodities/ of Veteran’s Benefits ’ 350 Motor Vehicle ’ 380 Other Personal ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) Exchange ’ 160 Stockholders’ Suits ’ 355 Motor Vehicle Property Damage Act ’ 862 Black Lung (923) ’ 875 Customer Challenge ’ 190 Other Contract Product Liability ’ 385 Property Damage ’ 720 Labor/Mgmt. Relations ’ 863 DIWC/DIWW (405(g)) 12 USC 3410 ’ 195 Contract Product Liability ’ 360 Other Personal Product Liability ’ 730 Labor/Mgmt.Reporting ’ 864 SSID Title XVI ’ 890 Other Statutory Actions ’ 196 Franchise Injury & Disclosure Act ’ 865 RSI (405(g)) ’ 891 Agricultural Acts REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 740 Railway Labor Act FEDERAL TAX SUITS ’ 892 Economic Stabilization Act ’ 210 Land Condemnation ’ 441 Voting ’ 510 Motions to Vacate ’ 790 Other Labor Litigation ’ 870 Taxes (U.S. Plaintiff ’ 893 Environmental Matters ’ 220 Foreclosure ’ 442 Employment Sentence ’ 791 Empl. Ret. Inc. or Defendant) ’ 894 Energy Allocation Act ’ 230 Rent Lease & Ejectment ’ 443 Housing/ Habeas Corpus: Security Act ’ 871 IRS—Third Party ’ 895 Freedom of Information ’ 240 Torts to Land Accommodations ’ 530 General 26 USC 7609 Act ’ 245 Tort Product Liability ’ 444 Welfare ’ 535 Death Penalty IMMIGRATION ’ 900Appeal of Fee Determination ’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 462 Naturalization Application Under Equal Access Employment ’ 550 Civil Rights ’ 463 Habeas Corpus - to Justice ’ 446 Amer. w/Disabilities - ’ 555 Prison Condition Alien Detainee ’ 950 Constitutionality of Other ’ 465 Other Immigration State Statutes ’ 440 Other Civil Rights Actions V. ORIGIN (Place an “X” in One Box Only) Appeal to District ’ 1 Original ’ 2 Removed from ’ 3 Remanded from ’ 4 Reinstated or ’ 5 Transferred from another district ’ 6 Multidistrict ’ 7 Judge from Magistrate Proceeding State Court Appellate Court Reopened Litigation (specify) Judgment Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 42 USC 1983 VI. CAUSE OF ACTION Brief description of cause: Second Amendment challenge to Hawaii's ban on U.S. Nationals owning firearms VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint: COMPLAINT: UNDER F.R.C.P. 23 JURY DEMAND: ’ Yes ✔ ’ No VIII. RELATED CASE(S) (See instructions): IF ANY JUDGE DOCKET NUMBER DATE SIGNATURE OF ATTORNEY OF RECORD 07/27/2020 /s/alan beck FOR OFFICE USE ONLY RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE Print Save As... Export as FDF Retrieve FDF File Reset Case 1:20-cv-00330 Document 1-1 Filed 07/27/20 Page 2 of 2 PageID #: 12 JS 44 Reverse (Rev. 12/07) INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 Authority For Civil Cover Sheet The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. (b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the “defendant” is the location of the tract of land involved.) (c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section “(see attachment)”. II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an “X” in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. V. Origin. Place an “X” in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge’s decision. VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service VII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet.
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